Madras High Court
P.Poomani vs R.Viswanathan on 19 January, 2022
Author: R.Subramanian
Bench: R.Subramanian
CRP(PD)No.2287 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP(PD)No.2287 of 2021 and
CMP.No.17294 of 2021
P.Poomani ... Petitioner
Vs
R.Viswanathan ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, against the Fair and Decretal Order dated 18.08.2021 passed in
I.A.No.1045 of 2019 in O.S.No.233 of 2016 on the file of the District
Munsiff Court, Avinashi.
For Petitioner : Mr.K.Govi Ganesan
For Respondent : No Appearance
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https://www.mhc.tn.gov.in/judis
CRP(PD)No.2287 of 2021
ORDER
The challenge in the present Civil Revision Petition is to an order of the trial Court in I.A.No.1045 of 2018 in O.S.No.233 of 2016 dismissing the application for amendment filed by the plaintiff seeking to include the relief of declaration and mandatory injunction.
2.The plaintiff filed a suit for a permanent injunction restraining the defendant from interfering with the plaintiff's possession of the suit property. The suit is resisted by the defendant contending that the defendant is the owner of the portion of the suit property, which was conveyed to the defendant as a road by the vendor of the plaintiff as well as the defendant.
3. Upon filing of the written statement denying the title of the plaintiff, the plaintiff came out with I.A.No.1045 of 2019 seeking amendment of the plaint to incorporate relief of declaration of title and mandatory injunction for removal of the compound wall. The plaintiff wanted to incorporate para No.VI-A thereby including the allegations on the title. This application was resisted by the defendant contending that the application for amendment is not maintainable as it would change the character of the suit.
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4.Heard Mr.K.Govi Ganesan, learned counsel appearing for the petitioner. The respondent, though served, has not appeared either in person or through his counsel duly instructed.
5.The amendment is sought for by the plaintiff since the title projected was denied by the defendant in the written statement. When the plaintiff's title is denied in a suit for permanent injunction, he has to necessarily seek declaration of title, otherwise the very suit for permanent injunction may be dismissed. In the process of seeking amendment, the plaintiff has necessarily to incorporate the averments regarding the title of the plaintiff. The denial of the same on the ground that it will change the structure of the suit cannot be accepted.
6.The learned trial Judge held that the amendment sought would amount to additional cause of action and alter the nature of the claim, therefore the amendment is impermissible.
7.When the relief of declaration is sought to be included necessary averments regarding Court fee and valuation will have to be made. These are all consequential amendments. This Court and the Hon'ble Supreme Court have repeatedly held that the Courts should allow pre-trial amendments 3/5 https://www.mhc.tn.gov.in/judis CRP(PD)No.2287 of 2021 liberally so that both the parties get comprehensive adjudication of their rights in the suit. Therefore, the order of the learned District Munsif dismissing the application for amendment cannot be sustained.
8.The application in I.A.No.1045 of 2019 will stand allowed. The plaintiff shall carry out the amendment and file an amended plaint on or before 28.02.2022. No application for permission to carry out the application is necessary. The respondent/defendant will have right to file additional written statement.
9.This Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
19.01.2022 vs Index: No Speaking order To:
1.The District Munsiff Court, Avinashi.
2.The Section Officer, VR Section, Madras High Court, Chennai.
R.SUBRAMANIAN, J.
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